CRI/T/20/81

IN THE
HIGH COURT OF LESOTHO

In the
Matter of' :

REX

v

LEBOHANG
MPAKANE

JUDGMENT

Delivered
by the Hon. Mr. Justice F.X. Rooney on the 30th day of September,
1982.

Miss
Moruthane for the Crown

Mr.
Ramodibedi for the defendant

The
accused is charged with murder. The indictment alleges that upon or
about the 11th July, 1980 at or near Likhutlong in the district
of
Mohale's Hoek, he did wrongfully and unlawfully and with intent to
kill, assault Paseka Motlohi and inflict upon him certain
wounds or
injuries from which Paseka died in Mohale's Hoek Hospital on the 18th
July, 1980.

A
preparatory examination was commenced before Mr. E.A. Kotey (a
magistrate) who on the 6th February, 1981 committed the accused
for
trial on a charge of murder. An indictment was presented in this
Court on the 28th April, 1981 and the accompanying Notice
of Trial
fixed the 7th September 1982 as the date of the trial. I have been
unable to obtain any explanation as to why it was decided
to select a
date of hearing more than 16 months after the presentation of the
indictment. It is not my experience that the High
Court rolls are so
congested with outstanding cases that an earlier date could not have
been obtained. Whatever the reason for
the extraordinary delay, a
direct result was that the

2

prosecution
encountered difficulty in presenting its evidence before this Court.
Fortunately, the accused was adminitted to bail
shortly after his
committal for trial and has been at liberty ever since.

It is
provided by section 140 of the Criminal Procedure and Evidence
Proclamation (now replaced by Section 141 of the Criminal Procedure

and Evidence Act 1981) that a person committed for trial shall be
brought to trial at the first session of the High Court for the
trial
of criminal cases held after the date of commitment and further that
if he is not brought to trial at the first session of
the Court held
after the expiry of six months from the date of his commitment he
shall be discharged from his imprisonment for
the offence in respect
of which he has been committed. The object of these provisions is to
ensure that an accused person is afforded
a speedy trial and that he
shall not be subject to indefinite imprisonment while awaiting trial.
The accused could have brought
to trial during the High Court session
commencing in August 1981. Since that time there has been a further
completed session of
the High Court which begun in February of this
year.

Before
the accused was asked to plead Mr. Ramolibedi submitted that he was
entitled to a discharge as he had not been brought to
trial within
the time prescribed by Section 141 above. I rejected this contention
on the authority of Van Wijk v. Attorney General
Transvaal 1915 AD
733 in which Innes CJ. said at 736

"The prisoner referred is to be discharged, not from his
indictment or from liability for the crime, but from imprisonment.

The legislature did not intend to constitute a prescription of rather
more than 6 months for all criminal offences under such
circums-tances; but it declared that no prisoner should be detained
in custody pending his trial for longer than the period mentioned".

The
accused was on bail throughout the period and his right to be freed
from imprisonment was not infringed.

However,
his bail bond should have been discharged automatically at the end of
the first session of the

3

High
Court held after the expiry of 6 months from the date of his
commitment. A person who is not liable to be imprisoned cannot
be
subjected to any manner or condition of bail. In Van Wijk v. Attorney
General (supra) the Appellate Division agreed that the
bail bond
should be discharged. The accused in this case was thereafter
permitted to attend before the High Court on a voluntary
basis. If he
has chosen to abscond the Court would have been faced with a new
situation.

Defence
counsel admitted that a post mortem examination was conducted on the
body of the person named in the charge as Paseka Motlohi.
In addition
two depositions recorded at the preparatory examination were
admitted. 'Manuku Chesa said that the deceased was the
son of his
sister. On the 22nd July, 1980, he went to the mortuary and
identified the body there as that of Paseka Motlohi.

Thabang
Chesa also knew the deceased. On the 22nd July, 1980 he identified
the body. Neither of these witnesses identified Dr, H.M.
de Ronde
who, it is said, carried out the post mortem examination.

Counsel
for the Crown applied for the admission of the deposition of Dr. de
Ronde in evidence at the trial under the provisions
of section 227 of
the Criminal Procedure and Evidence Act. It was contended that Dr. de
Ronde is outside the jurisdiction and her
attendance cannot be
procured without a considerable amount of delay and expense. In the
alternative it was submitted that as the
witness cannot be compelled
to attend at the trial, the Court should exercise a discretion to
admit her deposition.

Section
227 reads :

"(1)
The deposition of any witness taken upon oath before any magistrate
at a preparatory examination in the manner required
by section 70 in
the presence of any person who has been brought before the magistrate
on a charge of having com­mitted an
offence, or the deposition of
a witness taken in circumstances described in section 95, shall be
admissible in evidence on the
trial of the person for any offence
charged by the Director of Public Prosecutions in pursuance of

4

the
preparatory examination at which the deposition was taken or on that
person's trial before a subordinate court or on the remittal
of that
person's case by the Director of Public Prosecutions after
considering the preparatory examination except that

1. it
   is proved on oath to the satisfaction of the court that

   
   

(i) the deponent is dead;

(ii) the deponent is incapable of giving evidence;

(iii) the deponent is too ill to attend; or

(iv) the deponent is kept away from trial by the means and
contrivance of the accused or is outside the jurisdiction and his
attendance
cannot be procured without considerable amount of delay or
expense and the deposition offered in evidence is the same which was

sworn before the magistrate without alteration; and

2. (b)
   it appears on record or is proved to the satisfaction of the court
   that the accused, by himself, his counsel, attorney or
   law agents,
   had a full opportunity of cross-examining the witness.

   
   
   
   

   2. The
      evidence of a witness given at a former criminal trial shall, under
      like circumstances, be admissible on any subsequent
      trial of the
      same person upon the same charge.

      
      
   
   

2. Subject
   to the conditions mentioned in this section where the witness
   cannot be found after diligent search or cannot be compelled
   to
   attend, the court may allow his deposition to be read as evidence
   at the trial."

   
   

In
support of the application to admit the deposition there was placed
before the Court an affidavit sworn by Mr. M.T. Thabane,
Permanent
Secretary in the Ministry of Health. This affidavit revealed that Dr.
H.D. de Ronde was employed by the Lesotho Government
as a Medical
Officer and was stationed at the Government Hospital Mohale's Hoek
between the 30th January, 1980 and the 31st March,
1982. Following
the completion of her contract, Dr. de Ronde applied for part time
work in the Ministry of Health but, this application
was refused.
Attached to Mr. Thabane's affidavit is a minute dated 21st May, 1982
signed by an official in the Ministry confirming
that position.

5

Mr. Thabane went on to say :

"That consequently and as a result of this refusal Dr. H.M. DE
RONDE had no alternative but to leave the Kingdom of Lesotho
for her
country of origin which is the Netherlands.

(7)

That to date Dr. H.M. de Ronde is not in the Kingdom of Lesotho but
remains in her country of origin

(8)

That it would be impractical for the Government to pay for her
passage back here without incurring a lot of expenses and undue

delays."

Also
annexed to the affidavit was another minute dated 7th September, 1982
referring to the retrospective extension of Dr. de Ronde's
contract
up to the 31st March. There is also a reference to leave calculation.
I do not know why these matters were being attended
to by the
Ministry several months after Dr. de Ronde's departure. A copy of a
letter from the Royal Netherlands Embassy in Pretoria
dated 10th
November, 1981 with reference to Dr. de Ronde's work in Lesotho does
not appear to me to be relevant.

I have no
doubt that Mr. Thabane swore his affidavit in the honest belief of
the truth of its contents. However, it is possible
that he could be
mistaken as to the present whereabouts of the witness. It does not
follow that because Dr. de Ronde left the services
of the Lesotho
Government that she is no longer resident in Lesotho. This is a
matter which may be in the knowledge of the Chief
Immigration Officer
but he has not deposed to it.

There is
nothing to show that the doctor is not resident in a neighbouring
country. When I was faced with a similar situation in
Botswana some
years ago I delt with it, in the State v. Bantumetse Lobi and Another
1974(1) Botswana Law Reports 15 at 16 :

" The second condition which must exist before the Court may
exercise its discretion to admit

6

a deposition is that contained in subsection (3). Either the witness
cannot be found after diligent search or cannot be compelled
to
attend or is absent from Botswana and delay or unnecessary expense
would arise if he were compelled to attend. It is the State's

contention that Dr. Marrow is absent from Bobswana and delay or
unnecessary expense would arise if he were com­pelled to attend

to give evidence at this trial. The only evidence led to establish
this premise was that of Sub. Inspector Dube of the Botswana
Police
Force, an officer who was in charge of the investi­gation of the
alleged offence. All that Mr. Dube could tell the Court
was that Dr.
Marrow is not now in Botswana and that he left the country after the
preparatory examination was held. He was an expat­riate
officer
in the Government service serving on contract terms. Mr. Dube said
that the doctor came from somewhere in Europe, but he
does not know
where is now. I consider that while this evidence may well satisfy
the Court that Dr. Marrow is not in Botswana today,
it does nothing
to establish that delay or unnecessary expense would arise if were
compelled to attend. I cannot assume that Dr.
Marrow is not living in
some neighbouring country at no great distance from Lobatse, and that
his attendance cannot be procured
without either undue delay or
unnecessary expense."

I saw no
reason why I should adopt a different approach in the present case
particularily as in terms of section 227, the Court
is not vested
with a discretion. It must be proved an path that the circumstances
exist. As far as sub-section (3) is concerned
and where a discretion
is admitted there is no evidence that the witness cannot be found
after diligent search or that she cannot
be compelled to attend.

Some time
was taken up during the course of the trial by a consideration of the
provisions of section 227 (1) (b) above. On the
record of the
preparatory examination, the magistrate made use of the notation
"XXD-accused reserved" which I interpret
to mean that at
the point in the record the accused indicated that he wished to
reserve his cross-examination of the witness until
his trial. It was,
noted that whereas at the end of the first deposition this notation
appeared at its proper place, namely, at
the end of the deposition
and before the witness was asked to subscribe to it and before there
appeared the signatures of the witnesses
and the Certificate of the
magistrate,

7

in other
parts of the record and in particular in the case of Dr. de Ronde,
the notation was not in that order. The words "XXD
reserved"
appear at the very end of the document after the magistrate's
signature. This suggested that the magistrate may
have regarded the
intimation by the accused that he did not wish to cross-examine the
first witness as being general in character
applying to all the
others.

The
prosecution was unable to call Mr. Kotey, the presiding magistrate,
to give evidence as to whether or not he gave the accused
a full
opportunity to cross-examine the witness. This was because Mr. Kotey
left Lesotho just before the commencement of the trial
and he is not
expected to return. An attempt was made to solve the problem by
calling , the prosecutor,Mr. K.A. Tsoeliane who subscribed
to the
deposition as a witness. Having heard that gentleman, the Court gave
the accused an opportunity to give evidence contra
with the result
that the accused admitted under oath that he had been given an
opportunity to cross-examine Dr. de Ronde.

One other
matter had to be considered. It is required that the Court must be
satisfied that the deposition offerred in evidence
is the same which
was sworn to before the magistrate without alteration. On this there
was no evidence at all.

Mr.
Tsoeliane who signed the deposition as a witness may have been in a
position to assist but his evidence on the point was not
canvassed.
It follows that even if I have been satisfied that Dr. de Ronde could
not be produced as a witness another essential
requirement of the
section was not satisfied.

I find
that in practice very few magistrates add a comprehensive certificate
to a deposition taken at a preparatory examination.
To obviate the
kind of difficulty which faced the Court at this trial I strongly
recommend that judicial officers presiding at
preparatory
examinations should certify each deposition recorded on the following
lines.

8

" I certify that the evidence recorded in this deposition was
given by the witness under oath/ affirmation to the effect that
he
will tell the truth, the whole truth and nothing but the truth. The
evidence was taken down in writing in the presence of the
accused who
was given a full opportunity to cross-examine the witness which he
did/did not do. It was then read over to the witness
who signified
that it was correct by signing his name/affixing his mark/or thumb
print thereto in my presence and in the presence
of the witnesses."

Before
proceeding to consider the effect on the prosecution case of the
exclusion of the deposition of Dr. de Ronde who performed
a post
mortem examination on the body of the deceased, I make the comment
that had Crown Counsel chosen to invoke the provisions
of section
223(7) of the Act she might have succeeded in restoring the
prosecution case to some degree.

There is
evidence that the accused struck the deceased

on the
head with a stick or knobkerrie and the latter fell down bleeding.
Some witnesses said that thereafter the accused trampled
on the
deceased and stamped on his head with his boots. The deceased was
taken to the Mohale's Hoek Hospital and a week later was
dead.
Detective Trooper Letsoepa (PW.5) said that on the 18th July, 1980,
he saw the dead body at the mortuary and he observed
6 stitched
wounds on the head and on the left ear. He was unable to say what
caused these injuries which might have been the result
of surgery.

It is not
incumbent upon the Crown to prove the scientific cause of death
provided it is able to establish that the act that resulted
in death
was perpetrated by the accused. (Rex v. Fred Tekane 1980 (2) LLR
342). In Rex v. Sekati 1980 (1) LLR 213 Mofokeng J. reviewed
the
principle Lesotho authorities relating to the establish­ment of a
chain of causation in homicide cases. It is unnecessary
for me to
quote any particular passage from the judgment. The case established
the general principle that it is for the Crown to
exclude the
possibility of the existence of novus actus interveniens . If it
falls to

9

discharge
that onus then it will not have proved its case beyond reasonable
doubt. There is no onus upon an accused person to establish
that
there was no novus actus interveniens.

It cannot
be said in this case that there is direct evidence of an assault so
violent that it could not but have caused immediate
death. This
appears to be the test as to whether or not medical evidence is
necessary (Waihi and Another v. Uganda 1968 EA 278
referred to in the
State v. Mokotedi 1973 (1) Botswana Law Reports 85 at 87). It does
not depart from the views expressed by Cotran
CJ. in R. v. Fred
Tekane (supra).

In the
result therefore the Crown has failed to establish beyond reasonable
doubt that the accused caused the death of the deceased
and he cannot
be found guilty either of murder or culpable homicide.

By virtue
of Section 188 (2) of the Criminal Procedure and Evidence Act a
person charged with murder in regard to whom it is not
proved that he
caused the death of the person whom he is charged with killing may if
it is proved that he is guilty of having assaulted
the deceased be
found guilty of an assault with intent to murder or to do grevious
bodily harm or common assault.

I do not
propose to review the evidence in detail. It was established that a
number of persons were drinking at a rondavel where
'Manthakoana
Mohlotsane (PW.1) was selling beer. There was music and dancing and
it was either before or after (and probably after)
the hour at which
such parties are expected to close. Many people were assembled in a
small rondavel which was lit by two candles
placed on a table. At
some point the accused and another man named Tsietsi(whose present
whereabouts are unknown) entered the rondavel
and the trouble began.
The witnesses at the High Court were testifying about events which
took place over two year previously in
a poorly lit and crowded room.
The general tenor of the testimony adduced

10

in the
High Court created the impression that as memories of the incident
became faint with time, they were refreshed by a measure
of
imagination. There were inconsistances between the evidence of the
witnesses and in some cases a radical departure from evidence
already
given at the preparatory examination. I cannot say that I am
surprised at this. However, a picture emerges of the accused
behaving
in a violent fashion, not towards 'Manthakoana, but against her
customers. At least four people were assaulted either
with fists,
sticks or a knobkerrie. The accused lifted a candle and peered into
people's faces obviously with the intention of
determining who was
present. Not one witness was prepared to hazard a guess as to the
cause of the accused's behaviour. There were
no quarrels recorded
over drinks or women or anything else. It is said that the accused
was not only violent in his behaviour but
in his speech, threatening
to kill "a man and a woman".

'Mampolokeng Motau reported that the accused said to 'Manthakoana at
one stage

"I told you I will do something at your homestead".

My
assessors consider it possible that the eruption of the accused and
his companion into the rondavel at that hour of the evening
may have
been prompted by a desire to suppress drinking parties of this nature
which sometimes go on too late in the evening. There
may be some
substance in this view but there is no evidence to support it.

The
accused did not give evidence at his trial either to deny the conduct
attributed to him or to explain it. Although the evidence
of the
prosecution witnesses was unsatisfactory to the extent that I have
already mentioned, there is general agreement among them
that it was
the accused who violently attacked the deceased and hit him on the
head and caused him severe injury. This evidence
stands
uncontradicted and I have no reason to disbelieve it.

11

It is a
fact that when the accused was arrested shortly afterwards by W/0
Joseph Matiea no weapons were found in his possession.
But, I am
nonetheless satisfied that he did make use of either a stick or
knobkerrie or both. The W/0 told the Court that he actually
saw the
accused hitting a woman with a stick. Instead of arresting the
accused forthwith and confisticating the weapon, he contented
himself
with merely ordering the accused to desist. He then went to the
Police Station to fetch a vehicle to take the wounded to
hospital and
the accused to the Charge Office.

The
accused is found not guilty of murder but guilty of an assault with
intent to do grevious harm. My assessors concur in this
verdict.

F.X.
ROONEY

JUDGE

30th
September, 1982.

Attorney
for the Crown The Law Office